Sunday, January 18, 2004

CBS, PETA, MOVEON: COMMERCIAL VS. FREE SPEECHThe initial reaction upon hearing the news that CBS is refusing to run ads by PETA and MoveOn.org during the Super Bowl is that the network is engaging in censorship. I don't think it is, and not only due to the technicality over the right of a private company to reject ads. Rather, I think it's a good example of how commercial speech and free speech are two different animals.

It's not surprising that CBS would reject the ads, nor that they would give such flimsy excuses. The truth is, CBS is taking the long view. They're not going to risk offending their big-money clients for the sake of a couple of one-shot stunt advertisers. The targets of the PETA and MoveOn.org ads--the beef industry (but really, by extension, just about the entire food industry) and, more generally, a conservative-leaning business world that strives to avoid overt political controversy in its marketing--are going to be there for CBS for well beyond this year's Super Bowl. They commit tons of advertising dollars to the network every year, and hold power in the ability to take those dollars elsewhere. By contrast, the two advocacy groups will probably never buy another ad on CBS again, even if they did get their spots on during the game; and even if they did, they can't match the volume of their opponents. It's a question of jeopardizing established, long-term relationships in favor of a couple of inconsequential clients who won't stick around. From CBS' standpoint, it's a no-brainer.

Is it fair? No, but it's good business. The de facto veto power that corporate advertisers hold in a situation like this--and I have no doubt that they didn't have to tell CBS a thing; the network pre-empted itself with this line of thinking--is an unfair advantage, but one that exists because of their role in the broadcast industry. Despite the legal construct that enshrines public ownership of the broadcast airwaves/cablewaves, economic reality sets in for those who control the broadcast medium, and that's the case here. PETA's citing of the anti-smoking advocacy ads is more apt than most are aware of, because of one simple thing: Tobacco companies can't advertise on television. Because they aren't in the game, they can't hurt CBS or any other broadcaster, and so those broadcasters can accept anti-smoking messages with no fear of an advertising backlash (the nature of conglomerates, and Federally-mandated anti-smoking measures, notwithstanding).

But in an effort to even the playing field, I think this episode serves as a good illustration of how commercial speech rules should function. There's been a lot of legal wrangling over the past couple of years on whether commercial speech, like advertising and marketing pitches, should be afforded the same First Amendment protections as individualist free speech. Although nothing is settled, the leanings are toward setting up new rules for commercial communications. Given that commercial speech, and (more importantly) the way to deliver it, is dependent on outside factors, I'd say it's distinctive enough from free speech that the protections of one shouldn't apply to the other.